Vidal Sauceda, Jr. v. State

Opinion issued March 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00591-CR

VIDAL SAUCEDA JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 178th District Court

Harris County, Texas

Trial Court Cause No. 1012354

MEMORANDUM OPINION

A jury convicted appellant, Vidal Sauceda, Jr. of possession of cocaine

weighing more than four grams and less than two hundred grams by aggregate

weight,

found two enhancement allegations true, and assessed punishment at 32

years in prison. In five points of error, appellant contends that (1) the trial court erred

“in proceeding to trial with appellant dressed in a jail uniform”; (2) the trial court

erred when it overruled appellant’s objections to two remarks made by the prosecutor

during closing argument; and (3) the evidence was legally and factually insufficient

to support his conviction.

We affirm.

Background

In early January 2005, a confidential informant purchased cocaine from

“Robert” at 16811 City View, apartment 120 in Houston. A search warrant was

obtained for the apartment. The warrant was executed by Houston Police Department

narcotics officers, Sergeant D.J. Latin and Officer A. Vanderberry. At the time that

the warrant was executed, appellant, another man, a teenage boy, a woman, and a

small child were in the apartment. After announcing that they were police, Sergeant

Latin and Officer Vanderberry entered the residence. They saw appellant running

down the hallway. Appellant disobeyed the officers’ orders to stop. Sergeant Latin

noticed that appellant had something concealed in his hand. Officer Vanderberry

noticed that appellant’s hand was clenched.

The officers then saw appellant dive to the floor inside a bedroom and throw

something under the bed. Sergeant Latin retrieved a plastic bag from underneath the

bed; the bag contained what appeared to be crack cocaine and a razor blade. The only

other items under the bed were two shoe boxes. A lab later confirmed that the plastic

bag contained 5.7 grams of cocaine. The officers also recovered a safe from the

bedroom. Sixty-three grams of cocaine, a digital scale with cocaine residue on it, and

a pistol were found in the safe.

Appellant was indicted for the offense of possession of cocaine, weighing more

than four grams and less than two-hundred grams, with the intent to deliver. The trial

court charged the jury on this offense and also on the lesser-included offense of

possession. The jury found appellant guilty of the lesser-included offense.

Jail Uniform

In his first point of error, appellant contends that the trial court erred by

proceeding to trial with appellant dressed in his jail uniform, in violation of his right

to the presumption of innocence.

Relevant to this point of error is the following exchange, which occurred

between the trial court and appellant before voir dire began:

THE COURT: Let the record reflect that Mr. Sauceda [the defendant] is here

in traditional orange jumpsuit for Harris County Jail inmates. I’ve talked to

Mr. Sauceda and I’ve told you, Mr. Sauceda , that you have a right to bring in

trial clothes, the clothes you were arrested in or clothes to be brought down by

someone else, correct?

THE DEFENDANT: Yes.

THE COURT: And the clothes you were arrested in are still at the jail, right?

THE DEFENDANT: I guess they are.

THE COURT: I’ve been informed that they are.

THE DEFENDANT: All right.

THE COURT: Do you want to be dressed out in street clothes?

THE DEFENDANT: No. I’ll be all right like this.

THE COURT: Do you understand the negative impact it may have on a jury

panel if you’re sitting there in jail clothes, that they know you’re in jail?

THE DEFENDANT: All right.

THE COURT: Huh?

THE DEFENDANT: I’ve only got a t-shirt to wear with a pair of pants. That

ain’t being dressed right for court. I’ve got nothing. I don’t have nobody to

bring me nothing.

THE COURT: All right. Well, you have a right to put on what you were

wearing when you were arrested.

THE DEFENDANT: I’ll be fine like this, Judge.

THE COURT: You understand the negative impact the jury—that it might have

on a jury when they see you in jail clothes?

THE DEFENDANT: Yes, sir.

Appellant relies on Estelle v. Williams , in which the United States Supreme

Court held that an accused cannot be compelled to stand trial before a jury while

dressed in identifiable prison clothes. 425 U.S. 501, 514 , 96 S. Ct. 1691, 1697

(1976). The Texas Court of Criminal Appeals similarly held, in Randle v. State , that,

under Texas law, a defendant cannot be compelled to stand trial in prison garb. 826

S.W.2d 943, 945 (Tex. Crim. App. 1992). Thus, Texas law and federal law are the

same in that both prohibit compelling a defendant to be presented to the jury in jail

clothing.

Failure to make an objection to the court, however, is sufficient to negate the

presence of compulsion necessary to establish a constitutional violation. Estelle , 425

U.S. at 512–13, 96 S. Ct at 1697 . Indeed, in Estelle , the Supreme Court held that the

failure of the defendant in that case to object to appearing in jail clothes negated any

compulsion otherwise raised in the record. Id . 425 U.S. at 504 , 96 S. Ct. at 1693 .

Therefore, a defendant must object to being tried in jail attire or waive his right to

complain. Randle , 826 S.W.2d at 945 (citing Estelle , 96 S. Ct. at 1695 ).

Appellant argues that he never “effectively waived his right not to be tried in

a jail uniform” because it was “undisputed that the appellant was arrested in clothing

which would not have been appropriate to wear in trial before a jury.” He asserts that

his “acquiescence to be tried in a jail uniform cannot constitute waiver of the right not

to be so tried, where the appellant had at his disposal no reasonable alternative.”

Despite his contentions, the record shows that appellant never objected to being

tried in his jail uniform. In fact, it appears that it was the trial court who raised the

issue of appellant’s attire. The exchange between the trial court and appellant set

forth above shows that appellant had ample opportunity to object and that he did not.

Because he did not object, any “compulsion” to wear the jail uniform raised in the

record was negated by appellant’s lack of objection. See Estelle , 425 U.S. at 512–13,

96 S. Ct at 1697 .

We also note that one court of appeals has held, in a case in which the

defendant did object to being tried in his jail clothes, that the defendant forfeited the

right to complain of being tried in jail clothes after he declined both the court’s

invitation to change into the jogging suit that he was wearing when he was arrested

and an offer of “street clothes.” See Johnson v. State , 838 S.W.2d 906, 909 (Tex.

App.—Corpus Christi 1992, pet. ref’d). Relatedly, this and at least one other court

of appeals have held that a defendant’s wearing of less-than-desirable clothing during

trial does not implicate the defendant’s right to a presumption of innocence. See

Sullivan v. State , 997 S.W.2d 374 , 375–76 (Tex. App.—Beaumont 1999, pet. ref’d)

(concluding that there was no deprivation of rights in case in which defendant wore

t-shirt depicting a scantily clad woman during jury selection); Bryant v. State , 982

S.W.2d 46, 48 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (determining that

defendant’s appearing in same dress for two days of trial did not infringe on

presumption of innocence by suggesting to jury that she was in custody). In sum, it

would not be appropriate to reward appellant for choosing to implicate his right of

presumption of innocence by wearing his jail uniform and refusing to wear available

street clothing that would not otherwise implicate that right.

We overrule appellant’s first point of error.

Jury Argument

In his second and third points of error, appellant complains that the trial court

erred by overruling the defense’s objections, made during closing argument, to two

remarks by the prosecutor that the defense was “muddying the waters” and referring

to evidence offered by the defense as a “smokescreen.”

A bit of background is helpful in understanding this issue. On cross-examination of the police officers, the defense elicited testimony that the police had

not tested any of the items recovered at the apartment for fingerprints, including the

plastic bag that appellant threw under the bed and the razor blade contained in the

bag. The police testified, however, that it was not common practice to collect

fingerprint evidence in such cases. Sergeant Latin and Officer Vanderberry explained

that they did not need fingerprints to link appellant to the cocaine found under the bed

because they had seen him toss it there.

Related to this issue, the defense proffered the testimony of a private

investigator, who was a former law enforcement officer, as a fingerprint expert. The

expert opined that he thought that it would have been both appropriate and helpful

to have tested certain of the items recovered for fingerprints, including the plastic bag

and the razor blade, to assist in determining which individuals had exercised “care,

custody, and control” over the items. He opined that both the plastic bag containing

the cocaine and the razor blade found inside the bag were the types of items that were

“conducive” to fingerprints.

During its closing argument, the defense touched on the issue of fingerprints.

The defense suggested that the police had not been careful in handling the items

recovered at the apartment to preserve any fingerprints, pointed out that several of the

items had been identified by the defense’s expert as being “susceptible” to

fingerprints, and asserted that it would have taken minimal effort for the police to

have had the items tested for fingerprints.

With this background, we set forth the portions of the State’s closing argument

of which appellant complains:

[THE PROSECUTOR]: And, you know, it was pretty frustrating when the

defense calls in a private investigator on a couple of hours’ notice to come talk

about fingerprints, to muddy the waters.

[DEFENSE COUNSEL]: Judge, I object to the use of the term “muddying the

water.”

THE COURT: Overruled.

[THE PROSECUTOR]: It’s a smoke screen for the benefit of you guys.

[DEFENSE COUNSEL]: Objection to the use the term “smoke screen,” Judge.

THE COURT: Overruled.

The prosecutor then went on to explain why fingerprints were not necessary to prove

the State’s case.

The State may not use closing argument to strike at a defendant over the

shoulders of his counsel or to accuse that counsel of bad faith. Fuentes v. State , 664

S.W.2d 333, 335 (Tex. Crim. App. 1984). The State responds that its jury argument

responded to the argument of the defense counsel relating to the fingerprints issue.

The Court of Criminal Appeals analyzed an analogous jury argument in Mosley

v. State , 983 S.W.2d 249 , 258–59 (Tex. Crim. App. 1998) . The prosecutor in Mosley

argued that the defense counsel was asking the jury to “take a side road, a series of

side roads, rabbit trails, and a rabbit trail that will lead . . . to a dead-end.” Id. at 258 .

The Mosley court warned that defense counsel’s “legitimate arguments” cannot serve

as a basis for permitting prosecutorial comments that “cast aspersion on defense

counsel’s veracity.” Id. at 259 (citing Dinkins v. State , 894 S.W.2d 330, 357 (Tex.

Crim. App. 1995)). Though the rule is not precise, the court explained that “a

prosecutor runs a risk of improperly striking at a defendant over the shoulder of

counsel when the argument is made in terms of defense counsel personally and when

the argument explicitly impugns defense counsel’s character.” Id. Without expressly

finding error, the Mosley court assumed that the prosecutor’s comments, which are

of the same ilk as the remarks in this case, were inappropriate. Id. Based on such

assumption, the court conducted a harm analysis. Id. Mosley clarified that the proper

test for harm is that found in Rule 44.2(b) of the Texas Rules of Appellate Procedure.

Id. ; see Tex. R. App. P. 44.2(b) (providing that any non-constitutional “error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded”).

Using federal case law as guidance, the Mosley court adopted the following

three-factor test to apply when determining whether this type of error was harmful

or harmless: (1) the severity of the misconduct; (2) the measures adopted to cure the

misconduct; and (3) the certainty of conviction without the misconduct. Mosley , 983

S.W.2d at 260 .

In applying the first factor, the severity of the misconduct, we note that the

remarks did not accuse the defense counsel of lying or suggest that any evidence was

manufactured. See id. Rather, they responded to opposing counsel’s argument that

the police had conducted an incomplete or inefficient investigation of the case

because they had not done fingerprint analysis. “At most, the comments indicate that

the defense may be attempting to distort the jury’s view of the evidence through

clever argument.” Id. We conclude that the misconduct here, as in Mosley , was

modest or “mildly inappropriate.” See id . Accordingly, the severity of the

misconduct does not weigh heavily in appellant’s favor.

Regarding the second factor , we consider the measures adopted to cure the

misconduct. This case is similar to Mosley in that (1) the trial court did not take any

curative action and (2) the prosecutor continued with his remarks after the trial court

overruled the defense’s objections, making further reference to the fingerprint defense

as a “rabbit trail.”

Nevertheless, we also conclude, as did the Mosley court, that the third factor,

the certainty of conviction without the misconduct , “weighs heavily in favor of the

State.” Id. Here, the jury heard evidence that (1) appellant ran from the officers with

something in his hand; (2) Sergeant Latin and Officer Vanderberry saw appellant fall

to the bedroom floor and throw an object under the bed; and (3) the object recovered

was a plastic bag, which later was determined to contain 5.7 grams of cocaine. Given

the strength of evidence supporting the conviction, we conclude that appellant’s

conviction was fairly certain, regardless of the prosecutor’s comments. After

applying the Mosely factors, we hold that, given the mildness of the comments and

the strength of the State’s case, any error related to the trial court’s overruling of the

defense’s objections was harmless.

We overrule appellant’s second and third issues.

Legal and Factual Sufficiency

In his fourth and fifth issues, appellant contends that the evidence was legally

and factually insufficient to support his conviction.

A. Standards of Review

A legal-sufficiency challenge requires us to determine whether, after viewing

the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Johnson

v. State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State , 943 S.W.2d 152,

155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although our analysis considers

all of the evidence presented at trial, we may not re-weigh the evidence and substitute

our judgment for that of the fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

In a factual-sufficiency review, we view all of the evidence in a neutral light,

and we will set the verdict aside only if the evidence is so weak that the verdict is

clearly wrong and manifestly unjust or if the contrary evidence is so strong that the

standard of proof of beyond a reasonable doubt could not have been met. Escamilla

v. State , 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144

S.W.3d 477, 481 (Tex. Crim. App. 2004) ). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga , 144 S.W.3d at

481–82. Our evaluation may not intrude upon the fact-finder’s role as the sole judge

of the weight and credibility accorded any witness’s testimony. Cain v. State , 958

S.W.2d 404, 407 (Tex. Crim. App. 1997) . As the evaluator of credibility and

demeanor , the fact-finder alone determines what weight to place on contradictory

testimonial evidence . Id. at 408–09. The fact-finder may choose to believe all, some,

or none of the testimony presented. See id. In conducting a factual-sufficiency

review, we must discuss the evidence that, according to the appellant, most

undermines the jury’s verdict. See Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim.

App. 2003).

B. Elements of the Offense

A person is guilty of second-degree felony possession if he knowingly or

intentionally possesses a controlled substance in an amount greater than four grams

and less than two hundred grams. Tex. Health & Safety Code Ann . § 481.115(d)

(Vernon 2003). Cocaine is a controlled substance as defined by the statute. Tex.

Health & Safety Code Ann . § 481.102(3)(D) (Vernon Supp. 2005). “Possession”

is statutorily defined as the “actual care, custody, control, or management” of the

substance in question. Tex. Health & Safety Code Ann . § 481.002(38) (Vernon

Supp. 2005). To support a conviction for unlawful possession of a controlled

substance, the State must prove both that the accused exercised care, custody, control,

or management of the substance and that he knew that he possessed a controlled

substance. Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

C. Analysis

In support of his sufficiency challenges, appellant generally avers that the

evidence was legally and factually insufficient to support his conviction because “the

testimony of [Sergeant Latin and Officer Vanderberry] incriminating the appellant

was not credible.” The appellant contends that the jury must have found the officers’

testimony to lack credibility because “the jury rejected Sergeant Latin’s testimony

that the cocaine could not have been for personal use” because the jury “found the

appellant guilty only of simple unlawful possession.”

A basic tenet of legal-and factual-sufficiency review is that an appellate court

may not reweigh the evidence—including reviewing the credibility of witnesses. See

Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (legal sufficiency);

Cain , 958 S.W.2d at 407 (factual sufficiency). Even if the jury did not believe any

of the testimony supporting the element of intent to deliver, a jury may believe all,

some, or none of any witness’s testimony.

See Sharp v. State , 707 S.W.2d 611, 614

(Tex. Crim. App. 1986) (recognizing that jury “could choose to believe or not believe

the witnesses, or any portion of their testimony”). Thus, the jury was free to believe

the testimony supporting possession, while disbelieving the evidence supporting that

the possession was with intent to deliver.

Sergeant Latin and Officer Vanderberry each testified that appellant ran from

them, despite the officers’ announcement that they were police and their commands

that he stop. Sergeant Latin testified that appellant was concealing something in his

hand. Officer Vanderberry testified that appellant had his hand clenched. Both

officers told the jury that they saw appellant fall to the floor inside a bedroom and

throw something under the bed. The officers testified that Officer Latin lifted the bed

and recovered a plastic bag containing a razor blade and what appeared to be crack

cocaine. Other testimony was presented confirming that the bag did in fact contain

5.7 grams of cocaine.

In support of his sufficiency challenges, appellant points out that Sergeant

Latin’s and Officer Vanderberry’s version of the events was not corroborated.

Appellant points out that the “bag containing the cocaine was capable of being

examined for fingerprints to confirm the appellant’s alleged possession, but the bag

was never so examined.” Appellant also calls attention to the fact that he was “not

listed as a suspect on the search warrant, and had not been involved in [the]

controlled buy conducted on the premises a few days earlier.”

It is well-established that a conviction may be based on the testimony of a

single eyewitness. Aguilar v. State , 468 S.W.2d 75, 77 (Tex. Crim. App. 1971);

Lewis v. State , 126 S.W.3d 572, 575 (Tex. App.—Texarkana 2004, pet. ref’d). The

testimony of an officer, standing alone, is sufficient to establish unlawful possession.

See Noah v. State , 495 S.W.2d 260, 263 (Tex. Crim. App. 1973). The Court of

Criminal Appeals and several courts of appeal have held that similar evidence has

been sufficient to support a finding that the defendant possessed a controlled

substance. See id. (police officer saw defendant throw package from moving car);

Sneed v. State , 875 S.W.2d 792, 795 (Tex. App.—Fort Worth 1994, no pet.) (officer

saw defendant throw cocaine to floor); Ortega v. State , 861 S.W.2d 91, 95 (Tex.

App.—Houston [1st Dist.] 1993, pet. ref’d) (officer saw defendant drop something

on car floorboard).

Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that a reasonable jury could have found that the evidence established

beyond a reasonable doubt that appellant was guilty of possession of cocaine in an

amount greater than four grams and less than two hundred grams. See King , 29

S.W.3d at 562 . Additionally, upon viewing all of the evidence in a neutral light, we

conclude that the evidence is not so weak that the verdict is clearly wrong and

manifestly unjust that the standard of proof beyond a reasonable doubt could not have

been met. See Escamilla , 143 S.W.3d at 817 . We hold, therefore, that the evidence

is legally and factually sufficient to sustain appellant’s conviction.

We overrule appellant’s fourth and fifth points of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish. See Tex. R. App. P. 47.2 (b).